Melerine v. Tom's Marine & Salvage, LLC

• Court: Court of Appeal of Louisiana
• Writing for the Court: Judge Dale N. Atkins
• Decision Date: 04 March 2020
• Docket Number: NO. 2019-CA-0672,2019-CA-0672
• Citation: Melerine v. Tom's Marine & Salvage, LLC, NO. 2019-CA-0672 (La. App. Mar 04, 2020)
• Parties: MARTY MELERINE AND OYSTER FISHERIES, INC. v. TOM'S MARINE & SALVAGE, LLC, TOM'S WELDING, INC., TRIPLE T MARINE, LLC, CAPTAIN JAMES WILLIAMS, ALLIANZ GLOBAL RISKS US INSURANCE COMPANY, AND ALLIANZ GLOBAL CORPORATE AND SPECIALTY SE

MARTY MELERINE AND OYSTER FISHERIES, INC. v. TOM'S MARINE & SALVAGE, LLC, TOM'S WELDING, INC.,TRIPLE T MARINE, LLC, CAPTAIN JAMES WILLIAMS,ALLIANZ GLOBAL RISKS US INSURANCE COMPANY,AND ALLIANZ GLOBAL CORPORATE AND SPECIALTY SE

NO. 2019-CA-0672

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

MARCH 4, 2020

APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT

NO. 17-0472, DIVISION "B"

Honorable Jeanne Nunez Juneau, Judge Presiding

Judge Dale N. Atkins

(Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Dale N. Atkins)

Stephen Skelly Kreller

Katie M. Cusimano

THE KRELLER LAW FIRM

757 St. Charles Avenue, Suite 301

New Orleans, LA 70130

Jonathan W. Dettmann (admitted pro hac vice)

Craig S. Coleman (admitted pro hac vice)

Evelyn D. Snyder (admitted pro hac vice)

FAEGRE BAKER DANIELS LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402

COUNSEL FOR PLAINTIFF/APPELLEE

Andrew C. Wilson

MILLING BENSON WOODWARD, L.L.P.

68031 Capital Trace Row

Mandeville, LA 70471

Frederick W. Swaim, III

Galloway, Johnson, Tompkins, Burr & Smith, APLC

701 Poydras Street, Suite 4000

New Orleans, LA 70139

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED

This is a tort case involving a tugboat grounding on an oyster lease in St. Bernard Parish. Appellants, Tom's Marine & Salvage, LLC ("TMS"), and its primary liability insurer, AGCS Marine Insurance Company ("AGCS") appeal the jury verdict awarding Appellees, Marty Melerine and Oyster Fisheries, Inc. ("OFI"), damages in the total amount of $6,087,701.47. For the reasons that follow, we affirm.

BACKGROUND

Marty Melerine ("Mr. Melerine"), an oyster farmer for over thirty years, owns a 140-acre oyster lease in Christmas Camp Lake in St. Bernard Parish, Louisiana, under lease number 34005-09. Van Robin, ("Mr. Robin"), an oyster farmer for over forty years, subleases lease number 34005-09 from Mr. Melerine through his company, OFI. Both leases are located in Christmas Lake, St. Bernard Parish, Louisiana. Mr. Melerine and Mr. Robin developed the leases over several years to increase the productivity of the leases. Mr. Melerine and Mr. Robin both testified these were their most productive leases.

On April 7, 2016, Tom Dinh ("Mr. Dinh"), the owner of Tom's Marine & Salvage, LLC ("TMS"), sent a tugboat, the M/V Miss Elsie D (the "tugboat"), fromLafitte, Louisiana to Lake Pontchartrain to rescue another TMS vessel that sunk. That vessel, the "Sunshine," had sunk in Bayou Lacombe, on April 6, 2016, along the northshore of Lake Pontchartrain and was in peril of capsizing which would have caused a diesel oil spill and resulting Coast Guard sanctions. Time was critical, so Mr. Dinh prepared the M/V Miss Elsie D for the salvage mission, which involved attaching a 135-foot long, 40-foot wide crane barge to the tugboat—a 65-foot, three-story tug with twin 60-inch propellers. James Williams ("Captain Williams") was hired by Mr. Dinh to captain the tugboat.

The fastest and shortest route would have been through the Algiers Lock, across the Mississippi River, through the Industrial Canal Lock into Lake Pontchartrain. However, the Algiers Lock was under repair, and when Captain Williams spoke to the Algiers Lockmaster, he advised the Algiers Lock would be closed for two to three days. After a discussion with Mr. Dinh, the decision was made to take a longer route, south through Barataria Bay through the Empire Locks, down the Mississippi River, across Breton South, through the Mississippi Sound, across Lake Borgne and into Lake Pontchartrain.

After entering Breton Sound and encountering a storm, the tugboat lost its Global Positioning System ("GPS"). Captain Williams continued without GPS or charts and entered the mouth of the Mississippi River-Gulf Outlet Canal ("MRGO"), at which point the tugboat lost its clutch, resulting in the loss of an engine and rudder power. Captain Williams contacted Mr. Dinh who advised to bring the vessel to Hopedale, Louisiana ("Hopedale"), in order to repair the clutch and GPS. The MRGO is blocked between the mouth and Hopedale, so Captain Williams decided on a route through Bay Eloi and ultimately across ChristmasCamp Lake where the tugboat grounded over the boundary of OFI's and Mr. Melerine's leases.

Several people tried to aid Captain Williams in maneuvering the tugboat off the leases. Lonnie Assavedo ("Mr. Assavedo"), an oysterman working in Christmas Camp Lake, testified that he saw Captain Williams enter the lake on the date of the grounding and that he instructed Captain Williams to turn around out of caution for the oyster leases in the area because the water in the lake was too shallow to support the tugboat. Mr. Assavedo testified that Captain Williams turned the tugboat around and onto Mr. Melerine's oyster lease, where the tugboat grounded. Captain Williams testified that he called Mr. Dinh for assistance and was instructed to move off of the oyster leases. In response to Mr. Dinh's instructions, Captain Williams testified that he "revved the engine" to move the tugboat, which just caused the tugboat to rock back and forth. Mr. Melerine testified that he also came to assist Captain Williams in moving the tugboat off of the lease, and that, as Captain Williams attempted to move the tugboat, it just moved back and forth, stirring up sediment with the propellers. Captain Williams remained grounded in the area until the next morning, April 10, 2016.

On April 5, 2017, Appellees filed suit against TMS, Tom's Welding, Inc., Triple T. Marine, Captain Williams and TMS' alleged primary liability insurer, Allianz Global Corporate and Specialty SE and Allianz Global Risks US Insurance Company, Inc., alleging extensive damage to their oyster leases as a result of the grounding. On June 27, 2017, Appellees amended their petition to name AGCS Marine Insurance Company as a defendant and moved to dismiss Allianz Global Risks US Insurance Company and Allianz Global Corporate and Specialty SE as defendants with prejudice, which the trial court granted.

Thereafter, on December 18, 2018, Appellees filed a motion to dismiss Captain Williams and Tom's Welding, Inc. as defendants with prejudice. On December 19, 2018, the trial court dismissed Captain Williams and Tom's Welding, Inc. with prejudice, but ordered that Captain Williams make himself available to testify at trial, if called.

Prior to trial, Appellants and Appellees entered the following joint stipulations:

(1) The "Incident" refers to the grounding of the Miss Elsie D on Marty Melerine's lease on April 9-10, 2016. "Trip" refers to the voyage of the Miss Elsie D from the time it left Tom's Marine & Salvage, LLC's ("TMS") dock on April 8 until it exited Mr. Melerine's lease on April 10, 2016.

(2) Captain Williams was acting within the course and scope of his employment by TMS throughout the Trip and the Incident.

(3) Captain Williams was subject to the direction of TMS, and acted on its behalf and for its benefit, throughout the Trip and Incident.

(4) Discovery has yielded no evidence that Tom's Welding, Inc. had any involvement with or responsibility for the Trip and the Incident.

(5) Discovery has yielded no evidence that the Miss Elsie D was unseaworthy at the time that TMS chartered the vessel from Triple T Marine, LLC ("Triple T") subject to a bareboat charter agreement.

Additionally, Appellants and Appellees stipulated that the AGCS policy has a limit of $1 million; that this policy is the only policy at issue in this matter; and that this policy "excludes coverage of punitive damages."

On January 18, 2019, an eight-day jury trial on the merits commenced. Appellees presented several fact and expert witnesses at trial, including Mr.Melerine, Mr. Robin, Mr. Assavedo, Dr. Edwin Cake ("Dr. Cake"), Scott Porter ("Mr. Porter"), Ralph Litolff ("Mr. Litolff"), and a rebuttal witness, Dr. George Flowers ("Dr. Flowers"). Appellants also presented several expert witnesses.

On January 24, 2019, the jury rendered its verdict, finding TMS was negligent and caused damage to Appellees' oyster leases. The jury awarded compensatory damages to Mr. Melerine in the amount of $4,937,532.77 and awarded $1,150,169.70 to OFI. The trial court issued a written Judgment on the Jury Verdict on January 30, 2019. Thereafter, on February 1, 2019, AGCS filed a Motion to Vacate Judgment, arguing the trial court's January 30, 2019 judgment: (1) was inconsistent with the jury verdict form which does not list AGCS as a defendant.; (2) did not limit the damage award consistent with the terms and conditions of AGCS's policy and the parties' stipulation as to the policy limit; and (3) was prepared by Appellees' counsel without being circulated for approval by all parties, in violation Louisiana District Court Rule 9.5. On February 8, 2019, TMS filed a Motion for New Trial arguing that the trial court violated La. C.E. art. 411 by allowing Appellees to present the limits of its policy limits at trial. The trial court heard the Motion to Vacate Judgment and the Motion for New Trial on March 21, 2019. Following the hearing, the trial court rendered an amended judgment on April 10, 2019, consistent with the jury's verdict, awarding compensatory damages to Mr. Melerine in the amount of $4,937,532.77 and OFI in the amount of $1,150,169.70 and providing that AGCS's liability extends to, but does not exceed, the policy limits of AGCS's insurance policy. On April 11, 2019, the trial court denied TMS's Motion for New Trial. Appellants now appeal.

STANDARD OF REVIEW

"In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety." White v. Cox Operating, LLC, 2016-0901, p. 4 (La. App. 4 Cir. 4/5/17), 229 So.3d 534, 538 (quoting Hall v. Folger Coffee Co., 2003-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98). "Thus, a reviewing court may not...